Krivanek v. Fibreboard Corp. (1993)

Our plain-English summary of Krivanek v. Fibreboard Corp. (Washington Court of Appeals, December 13, 1993).

Ben Krivanek, who worked at the Puget Sound Naval Shipyard from 1953, was diagnosed with pleural mesothelioma in 1987 and died in 1988 at age 58. He sued asbestos product makers; after his death his wife, Carol Krivanek, pursued the case as personal representative, adding wrongful death and survival claims for herself and their children. Most defendants settled, and the case went to trial against Owens-Corning Fiberglas. The jury found its product not reasonably safe and awarded $90,000 to the estate, $30,000 to Mrs. Krivanek and $30,000 to the children together. The trial court subtracted prior settlements, leaving a $49,700 judgment. On appeal, the court held that the trial court correctly used pre-1981 law and need not have let the jury consider industry-custom evidence, because Mr. Krivanek's exposure came decades before the 1981 act. It also held that Mrs. Krivanek's $30,000 award fell far below the undisputed lost pensions and wages, and ordered a new trial on her damages only.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Washington Court of Appeals, 1st Division
• Decided: December 13, 1993
• Citation: 865 P.2d 527
• Docket: No. 29484-9-I
• Stage: Appeal from judgment after trial
• State: Washington

Outcome. The court affirmed the liability finding against Owens-Corning Fiberglas and the damages awards to Mr. Krivanek's estate and children, but reversed the denial of a new trial on Mrs. Krivanek's damages and remanded for retrial on her damages only.

What the court held. The 1981 Washington product liability act does not apply where substantially all injury-producing asbestos exposure occurred before its adoption, so pre-act instructions without state-of-the-art evidence were proper. A jury award outside the range of the uncontroverted evidence of economic loss is an abuse of discretion to uphold.

Issues decided: Fault, Apportionment and Settlement Credits, Compensatory Damages, Wrongful Death and Survival, Design Defect, Trial Procedure and Discovery.

The people and their exposure

• Ben Krivanek: pleural mesothelioma; died

Who	Work	Where	When	Products
Ben Krivanek	shipyard worker (shipyards and maritime work)	Puget Sound Naval Shipyard, Washington	1950s-1960s

The defendants

• Owens-Corning Fiberglas, Inc. (manufacturer) · its asbestos trust
• Fibreboard Corporation (manufacturer) · its asbestos trust

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Koker v. Armstrong Cork, Inc. (Washington Court of Appeals, 1st Division, 1991). The court rejected most of Celotex's and Raymark's challenges but reversed the jury verdict for Lewis and Roberta Koker and remanded for a new trial because of an erroneous lost-chance-of-survival instruction.

Later decisions citing this one

11 later decisions in our library cite this one:

• Walston v. Boeing Company (Washington Supreme Court, 2014). The Washington Supreme Court affirmed the Court of Appeals and remanded for entry of summary judgment for Boeing, ruling against Walston and his estate.
• Macias v. Saberhagen Holdings, Inc. (Washington Supreme Court, 2012). The Washington Supreme Court reversed the Court of Appeals and held the trial court properly denied the respirator manufacturers' summary judgment motion, so the Maciases' failure-to-warn claims went back to the trial court.
• Lunsford v. Saberhagen Holdings, Inc. (Washington Supreme Court, 2009). The Washington Supreme Court affirmed the Court of Appeals, held that the trial court erred in dismissing the Lunsfords' strict product liability claims against Saberhagen Holdings, and remanded for further proceedings, so the Lunsfords won and Saberhagen lost.
• Braaten v. Saberhagen Holdings (Washington Supreme Court, 2008). The Washington Supreme Court reversed the Court of Appeals and reinstated the trial court's summary judgment orders in favor of pump and valve manufacturers Buffalo Pumps, IMO, Crane and Yarway, against the Braaten estate.
• Brewer v. Fibreboard Corp. (Washington Supreme Court, 1995). The Washington Supreme Court affirmed that the $175,000 Manville Trust settlement was reasonable but held the setoff should be only the $21,000 actually received, and remanded for recalculation of the judgment against Fibreboard, Owens-Corning Fiberglas and Pittsburgh Corning at $290,643.56, a result favoring the Brewers.
• Budd v. Kaiser Gypsum Company, Inc. (Washington Court of Appeals, 1st Division, 2022). The Court of Appeals affirmed the jury's $13,426,000 verdict for Raymond Budd against Kaiser Gypsum Company, rejecting all of Kaiser's challenges.
• Ehlert v. Brand Insulations, Inc. (Washington Court of Appeals, 1st Division, 2014). The Court of Appeals affirmed the judgment for Brand Insulations, upholding dismissal of the widows' strict liability claims, the general negligence instruction and exclusion of the newspaper articles, and did not reach Brand's cross appeal.
• Lunsford v. Saberhagen Holdings, Inc. (Washington Court of Appeals, 1st Division, 2007). The Court of Appeals reversed the trial court's partial summary judgment for Saberhagen, holding that strict product liability applies to Lunsford's 1958 exposure, and remanded the case.
• Anchor Packing Co. v. Grimshaw (Maryland Court of Special Appeals, 1997). The appeals court held that the statutory cap on noneconomic damages applies to the wrongful death awards in Zumas and McCaffery, but not to the personal injury and consortium awards. It ordered Grimshaw's medical-expense award cut to the stipulated amount and reversed the judgment against Hopeman Brothers. It otherwise affirmed the judgments for the plaintiffs against Anchor and Owens-Corning.
• Mavroudis v. Pittsburgh-Corning Corp. (Washington Court of Appeals, 1st Division, 1997). The Court of Appeals affirmed the judgment for the Mavroudis plaintiffs against Owens-Corning Fiberglas Corp. and affirmed the trial court's finding that the pretrial settlements were reasonable.
• Viereck v. Fibreboard Corp. (Washington Court of Appeals, 1st Division, 1996). The Court of Appeals affirmed the judgment on the jury verdict for Virgil Viereck's estate and his wife Julia Viereck against Owens-Corning Fiberglas, holding that pre-WPLA law applied and that the evidentiary rulings were within the trial court's discretion.

Amounts in the opinion

• $90,000 (compensatory)
• $30,000 (compensatory)
• $150,000 (total)
• $100,300 (settlement)
• $49,700 (other)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

72 Wn. App. 632 (1993)

865 P.2d 527

CAROL J. KRIVANEK, as Personal Representative, Appellant,

v.

FIBREBOARD CORPORATION, ET AL, Defendants, OWENS-CORNING FIBERGLAS, INC.,

Respondent.

No. 29484-9-I.

December 13, 1993.

The Court of Appeals of Washington, Division One.

[*633] Richard J. Hilfer and Castle, Schnautz & Hilfer, P.S.; Mark S. Leemon and Fury Bailey, for appellant. Ronald C. Gardner, Steven G. Wraith, and Lee, Smart, Cook, Martin & Patterson, P.S., Inc., for respondent.

WEBSTER, C.J.

Carol Krivanek appeals a judgment for damages. She claims that based on the evidence presented at trial, the jury's damage award was inadequate, and the trial court abused its discretion in denying her motion for a new trial. Owens-Corning Fiberglas (OCF) assigns error to the court's failure to give OCF's proposed instructions to the jury that it could consider the asbestos industry's customs and technological feasibility evidence.

FACTS

Ben Krivanek began working at the Puget Sound Naval Shipyard (PSNS) in March 1953. He married Mrs. Krivanek in 1963; the couple have eight children. In June 1986, Mr. Krivanek retired from PSNS; in August 1987, he went to work for a private firm with contracts at PSNS.

In December 1987, Mr. Krivanek was diagnosed as having malignant mesothelioma, a cancer of the pleura (the lining of the inside of the chest cavity). He was referred to a thoracic surgeon; after consultation, he decided that he should undergo surgical treatment. From February 21 to March 1, 1988, he was hospitalized for an extrapleural pneumonectomy, surgery in which a lung is removed and the diaphragm is rebuilt. Subsequently, he had radiation therapy; he returned to work in mid-April. On June 13, 1988, he was readmitted to the hospital. Doctors found a palpable mass in his paraspinal area which was progressive mesothelioma. On July 10, 1988, while still in the hospital, he died; he was 58 years old.

Prior to his death, Mr. Krivanek had filed suit against several corporations, alleging negligence and product liability. He contended that these corporations had manufactured [*634] the asbestos-containing products to which he was exposed at PSNS. After he died, Mrs. Krivanek, as personal representative of Mr. Krivanek's estate, was substituted as the plaintiff and was permitted to amend the complaint to allege her and the Krivanek children's wrongful death and survival claims. Prior to trial, Mrs. Krivanek settled with several of the corporations, and the trial proceeded with OCF as the sole defendant. At trial, Mrs. Krivanek and Mr. Krivanek's friend and fellow shipyard worker, Mr. Stremmel, testified that Mr. Krivanek had planned to work until his youngest son, Jason, was out of college. Mr. Krivanek was also a member of the Army Reserve, and Mrs. Krivanek's share of his military pension, as his surviving spouse, was reduced by 60 percent, to $309 per month. She also received a share of Ben Krivanek's civil service retirement pension, which was reduced by approximately 35 percent to $1,165 per month.

Dr. Finch, an economist, testified as to Mrs. Krivanek's and her children's economic losses. Considering Mr. Krivanek's work life expectancy for wages, life expectancy for pensions, personal consumption, and home services, Dr. Finch arrived at a total loss to Mrs. Krivanek of $401,919.[1] For Mr. Krivanek's negligence and product liability claim, Mrs. Krivanek also presented evidence of $16,601 in physician bills, $50,899.74 in hospital bills, and $5,245.43 in funeral costs.

The jury found that OCF was not negligent but that its product was not reasonably safe and that this unsafe condition was a proximate cause of Mr. Krivanek's illness and death. The jury awarded Mr. Krivanek's estate $90,000 on his product liability claims. On their respective wrongful death and survival claims, Mrs. Krivanek was awarded $30,000, and her children together were awarded $30,000.[2] The court [*635] offset the $150,000 verdict by the total amount of the settlements paid to Mrs. Krivanek prior to trial, $100,300, awarding a judgment against OCF of $49,700.

PRODUCT LIABILITY ACT

OCF claims that the court erred in instructing the jury under standards of liability predating the product liability act of 1981. RCW 7.72.030. OCF asserts that when the 1981 act applies, jury instructions on negligence and strict liability must include consideration of state-of-the-art evidence on asbestos (evidence about custom in the industry, and historical, medical, and scientific knowledge about asbestos). Crittenden v. Fibreboard Corp., 58 Wn. App. 649, 656-59, 794 P.2d 554, 803 P.2d 1329 (1990).

[1] Where the harm results from exposure, and it appears that substantially all of the injury-producing events occurred prior to the adoption of the 1981 act, the 1981 act does not apply. Koker v. Armstrong Cork, Inc., 60 Wn. App. 466, 472, 804 P.2d 659, review denied, 117 Wn.2d 1006 (1991). The jury is not required to consider the asbestos industry's state-of-the-art evidence where a shipyard worker's products liability action against asbestos products manufacturers arose before the 1981 act.

Ben Krivanek was exposed to asbestos in the 1950's and 1960's and was diagnosed in 1987. Medical experts testified that most people with mesothelioma are found to have their first exposure to asbestos 20 or 30 years before diagnosis, clearly placing Ben Krivanek's exposure and inhalation substantially before the act. Because the harm results from continuous exposure, it appears that the injury-producing events occurred before the effective date of the act, July 26, 1981. Thus, because the claim arose prior to the act, the trial court was correct in giving the jury instructions based on pre-act law. DAMAGES

Mrs. Krivanek claims that the verdict was outside the range of the evidence, and therefore, the court should have [*636] granted her a new trial. She asserts that the jury awarded a low verdict because it ignored the evidence.[3] [2, 3] Denial of a new trial on grounds of inadequate damages will be reversed where the trial court abuses its discretion. Wooldridge v. Woolett, 96 Wn.2d 659, 668, 638 P.2d 566 (1981). A trial court abuses its discretion when its exercise of discretion is manifestly unreasonable or based on untenable grounds. Allard v. First Interstate Bank of Wash., N.A., 112 Wn.2d 145, 148, 768 P.2d 998, 773 P.2d 420 (1989). In determining whether a new trial should be granted because of inadequate damages, the trial court and this court are entitled to accept as established those items of damage which are conceded, undisputed, and beyond legitimate controversy. Hills v. King, 66 Wn.2d 738, 741, 404 P.2d 997 (1965); Singleton v. Jimmerson, 12 Wn. App. 203, 205, 529 P.2d 17 (1974) (citing King). Where special damages are undisputed, and the injury and its cause are clear, the court has little hesitancy in granting a new trial when the jury does not award these amounts. See Jimmerson. We reverse a jury award of damages which is outside the range of substantial evidence in the record. Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 279-80, 840 P.2d 860 (1992).

[4] Dr. Finch testified to economic losses of $401,919 that Mrs. Krivanek would suffer as a result of Mr. Krivanek's death. Mrs. Krivanek's award, $30,000, was less than the [*637] lost value of the pensions alone. While the jury was not bound by Dr. Finch's expert testimony, it was bound by the unrebutted, uncontradicted evidence which formed the basis for those opinions and calculations, the evidence of the lost pensions and wages. We find that the trial court abused its discretion in unreasonably finding the damage award to be within the range of the evidence.

The uncontroverted evidence was that Ben Krivanek would have received $133,039 from the civil service pension (after subtracting 65 percent that Mrs. Krivanek continues to receive), and $82,130 from the military pension (after subtracting 40 percent that Mrs. Krivanek continues to receive). These pension losses alone amount to $215,169. If this figure were reduced by a 25 percent personal consumption factor, to $161,376, it would still be five times more than the jury award to Mrs. Krivanek.

As for Ben Krivanek's wages, Ben was employed when he became ill. Up to the time of trial alone, his lost wages totaled $90,563. Even completely eliminating any future wages ($125,778, from trial to his work life expectancy), the value of Ben's home services ($41,665, from his death to his life expectancy), and Ben's personal consumption ($71,256 from his death to his life expectancy, at a rate of $287 per month), the jury's award nowhere nearly approximates these uncontroverted pension and wage losses of approximately $251,939 to $305,732.[4] Thus, the jury's $30,000 verdict was not within the range of the evidence.

We affirm the finding of liability under the product liability act, and the determination of damages on Mr. Krivanek and his children's claims. We remand for a retrial on Mrs. Krivanek's damages only.

PEKELIS and KENNEDY, JJ., concur.

Review denied at 124 Wn.2d 1005 (1994).

[1] Dr. Finch used United States Government tables to get Mr. Krivanek's work life expectancy, age 65, and his life expectancy, 18.99 years. [2] These amounts were: $2,250 each to Michael Moore, Christie Hartke, Cary L. Krivanek and David M. Krivanek; $3,000 to Joseph C. Krivanek; $4,500 each to Steven R. Krivanek and Timothy P. Krivanek; and $9,000 to Jason E. Krivanek.

[3] OCF also claimed that it was error for the court not to conduct a reasonableness hearing. Where the plaintiff has settled with some defendants and not others "[a] hearing shall be held on the issue of the reasonableness of the amount to be paid with all parties afforded an opportunity to present evidence." RCW 4.22.060(1). Here, the amount of the unsettled claim exceeded the judgment against OCF. Ten of eleven defendants settled with Mrs. Krivanek. One of them, Fibreboard, had not paid its $65,000 settlement at the time of the judgment, November 26, 1991. The court reduced the $150,000 verdict by the amounts actually paid by the settling defendants, $100,300, but did not reduce the verdict by the Fibreboard settlement because Fibreboard had not yet paid, and ordered OCF to pay the remaining portion of the verdict, $49,700. The court also ordered that OCF be reimbursed to the extent Fibreboard paid. Essentially, if Fibreboard paid $49,700, OCF would receive that amount. Thus, a reasonableness hearing was not necessary because the judgment against OCF was less than the Fibreboard settlement. On September 29, 1992, Fibreboard paid $26,000 of its settlement.

[4] The $251,939 figure represents wages lost up to trial, $90,563, plus lost pensions reduced by a 25 percent personal consumption factor, $161,376. The $305,732 figure represents the same losses without a deduction from pension losses for personal consumption.

Sources

• The opinion on Google Scholar
• Washington asbestos laws
• Washington asbestos exposure sites